2005 IEHC 408
[2002 No. 90 MCA]
IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000,
JUDGMENT of Mr. Justice William M. McKechnie delivered on 28th day of April, 2005.
In late August 2002 the applicant became aware of certain works being carried out at the aerodrome. This led to the first of many visits, on 4th September of that year, by Mr. Jim McInerney who is a planning inspector with the Council. It was also he who swore the principal affidavits on behalf of the planning authority. As a result, the dispute in this case centres around those works or uses which since its acquisition by Fallowvale Ltd., have been carried out or carried on at the aerodrome by the respondents or either of them. It is asserted by the Council that such works/uses require planning permission which has not been obtained. On behalf of the respondents, it is claimed that such development is exempted from the requirements of the Planning and Development Act, 2000 under a variety of headings, including s. 4(1)(h) thereof and/or under Class 32 and Class 39 of the Planning and Development Regulations 2001 (S.I. No. 600/2001) "The Regulations". Hence these contested proceedings between the parties.
(i) The laying out of an area as a car park, coloured yellow on TD-02, and the completion of an extension to an existing car park coloured grey thereon.
(ii) The extension and/or alteration and/or modification of an existing bungalow coloured blue in respect of which the said drawing shows a first floor extension (coloured green), a new control tower above ridge height (coloured pink) and a new roof level viewing gallery (coloured turquoise),
(iii) The extension of a taxi way and the surfacing of this extended taxi way (shown hatched green on the said drawing),
(iv) The removal of old hangars, the construction of new hangars and/or the extension of existing hangars (shown coloured red, green and pink-partly hatched black on the said drawing),
(v) The erection of security fencing (depicted by a blue line on the said drawing)
(vi) The installation of a waste water treatment plant (again identified as such on the said drawing)
(vii) The construction of a fuel storage tank (again identified as such on the said drawing) and
(viii) The construction and use of a storage shed adjacent to existing hangars (shown coloured pink and identified as "New Stores" on the said drawing).
"4(1) The following shall be exempted developments for the purpose of this Act …
(h) Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures; …"
Section 160(1) is in the following terms:-
"160(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject."
"5(1) "Aerodrome" means any definite and limited area (including water) intended to be used, either wholly or in part, for or in connection with the lending or departure of aircraft:
"airport" means an area of land comprising an aerodrome and any buildings, roads and car parks connected to the aerodrome and used by the airport authority in connection with the operation thereof;
"airport operational building" means a building other than a hotel, required in connection with the movement or maintenance of aircraft, or with the embarking, disembarking, loading, discharge, or transport of passengers, livestock or goods at an airport.
"6(1) "Subject to Article 9, development of a class specified in column 1 of Part I of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part I opposite the mention of that class in the said column 1".
"9(1) Development of which Article 6 relates shall not be exempted development for the purposes of the Act –
(a) if the carrying out of such development would
(i) contravene a condition attached to a permission under the Act or be inconsistent with any use specified in a permission under the Act, …
(viii) consist of or comprise the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of which is an unauthorised use."
COLUMN 1 COLUMN 2
Description of Development Conditions and Limitations
The carrying out by any person to whom an aerodrome licence within the meaning of the Irish Aviation Authority (Aerodromes And Visual Ground Aids) Order, 1998 (No. 487 of 1998) has been granted, of development consisting of –
(a) The construction or erection of an extension of
1. Where the building has not an airport operational building within an airport. been extended previously, the floor area of any such extension shall not exceed 500 sq.m. or 15% of the existing floor area, whichever is the lesser.
2. Where the building has been extended previously, the floor area of any such extension, taken together with the floor area of any previous extension or extensions, shall not exceed 15% of the original floor area or 500 sq.m, whichever is the lesser.
3. The planning authority for the area shall be notified in writing not less than 4 weeks before such development takes place
(b) The construction, extension or alteration or removal of aprons, taxiways or airside roads used for the movement of aircraft and the distribution of vehicles and equipment on the airside, within an airport,
(c) The construction, erection or alteration of visual navigation aids on the grounds including taxiing guidance, signage, inset and elevated airfield lighting or apparatus necessary for the safe navigation of aircraft, within an airport.
(d) The construction, erection or alteration of security fencing and gates, security cameras and other measures connected with the security of airport infrastructure, within an airport or
(e) The erection or alteration of directional locational or warning signs on the ground, within an airport."
Column 1 of Class 39 provides the following description of development:-
"The erection, placing or keeping on land of any lighthouse, beacon, buoy or other aid to navigation on water or in the air". Column 2 then contains the following conditions/limitations "any such lighthouse, beacon, buoy or other navigational aid shall not exceed 40 metres in height."
(i) an extension was being created at first floor level to the western gable thereof,
(ii) a dormer extension was being constructed at first floor level along the northern roof slope with a flat roof over half the width of the bungalow and over the full length of the bungalow; this for use apparently as an observation area,
(iii) an octagonal control tower with a flat roof was being erected along the existing roof ridge level and,
(iv) at ground level the habitable area was being extended by the enclosure of a small covered area to the front and the conversion of a small area to the rear.
Mr. McInerney alleges that these works increased the floor space by more than 15% and that the purpose of such works was to facilitate a change of use from a residential dwelling house, which formally it had been, to a viewing area at first floor level.
Moreover he also claims that a structure which had been used as a hangar (being the area hatched black and coloured pink on drawing TD-02) had been demolished and that preparations were in place for the construction of a new enlarged hangar which incorporated but was much larger than the said hatched area.
When leaving the aerodrome on 4th September, he observed a motor vehicle bringing material on to the site which he felt would be used in the construction of this new hangar.
This second inspection also showed that tarmacadam had been laid on the existing taxi way and that work had also commenced on tarmacing the newly extended car park north of the bungalow (coloured grey on the said drawing TD-02).
Work was also continuing in relation to the bungalow. Either on the first or on the second visit, Mr. McInerney saw that a hangar, shown coloured green on the said drawing, was still in existence: this despite the fact that it had been the subject matter of an application for retention which was refused by the council on 29th day of June, 2000. (Planning reference S 00A/0284).
In addition Mr. O'Connor, and to a somewhat lesser extent Mr. Keane, suggests that the applicant authority, in its approach and manner of dealing with these proceedings, was ignoring important factors such as the safety and welfare of airport users. He records his frustration at the bureaucracy of red tape, at what he describes as "the politics" of the situation and at the allegations and counter allegations (not specified), which quite clearly he blames the Council for. Having referred to the International Civil Aviation Organisations' Chicago Convention to which Ireland is a signatory, he offers the unconditional and unqualified view that if the planning authority's requirements were to be met, at this aerodrome, " … Ireland would be in blatant breach of a number of the annexes to the Chicago Convention". He seeks a much more constructive approach on the part of the planning authority. As would follow from this stance, he fully supports the immediate carrying out of all the works envisaged.
As a result of the works carried out by the respondents the original gross floor area has been increased from 259.9 sq metres to 281.1 sq metres which creates an addition of only 8.5 per cent. Moreover as with all such works the increase in the viewing area at first floor level was for safety, navigation and security reasons.
With regard to the "New Stores", it is alleged on behalf of the respondents that in addition to this structure there were five other storage sheds at the aerodrome. These, like other structures became dangerous and dilapidated over a period of time. It is claimed that the structure in question has simply been repaired and upgraded in the same location as has previously existed. The building in which the fire station is located has not been re-roofed because of council objections. This exposes the fire tender, which in certain circumstances, may render its use inoperable. So this situation cannot be allowed to continue. The replacement of a roof in this area is clearly, it is alleged, exempt under s. (4)(1)(h) of the Act of 2000.
It is denied by the planning authority that the erection of a new fuel tank over ground is exempted under s. 4(1)(g) of the Act of 2000.
Mr. McInerney agrees that he had no objection in principle to the mound of earth being moved but claims that the western boundary was not identified to him as a possible location nor was the fact that the berms would be 2 metres (approximately) in height. Hence his continuing objection in this regard. He then refers to the fact that an undertaking was given to the High Court on 4th November, 2002 that the entire mound along the western boundary and not less than 25 metres of the mound along the northern boundary would be removed and that certain restoration works would be carried out.
(a) with regard to the respondent's allegations that the Council deposited large quantities of material within this aerodrome, Mr. McInerney asserts that any such deposited material resulted from contractors working under the supervision of Kildare County Council which in turn was acting on behalf of the NRA; this in the course of the construction of part of the M4 known as the Leixlip bypass,
(b) the drawing included by Weston Ltd. in its letter dated 26th September, 2002 only displayed an intention to relocate the mound of earth at the northern boundary of the aerodrome and made no mention of any suggested repositioning on the western side. However, following an undertaking given to the court on 4th November, 2002 and the Council subsequently becoming satisfied that the terms thereof were complied with, this issue is now one of principle only
(c) whilst it may very well be that there was a watch tower within this aerodrome for 15 years or thereabouts, this did not of itself render the constructed octagonal tower on the rooftop immune from the requirements of obtaining planning permission, and
(d) he disputes strongly that the hangars in question are integrated hangars. In his opinion there are four separate hangars each with its own individual access and egress with none having any interconnection between them. Each is therefore a separate and self contained unit.
It is therefore submitted on behalf of the planning authority that in the circumstances of this case, the respondents must discharge the onus of establishing to the court's satisfaction that the matters complained of constitute exempted development either under s. 4 of the Act of 2000 or under those Article of the 2001 Regulations as are above identified.
In the alternative it is also submitted that even if the bungalow is "an airport operational building", Weston Ltd. cannot rely on the exemption contained in Class 32(a). This by reason of its failure to comply with the conditions listed in Column 2 of that Class. These conditions undoubtedly apply to subparagraph (a). In at least two respects there has been an infringement thereof. Firstly, it is stated that the extension carried out has increased the floor area by more than 15% and secondly, that the respondents did not give the required four weeks notice prior to the commencement of such development. Therefore, on this basis alone, the exemption cannot apply.
In addition there is a further barrier to the respondents relying on Class 32. It is by reason of Article 9(1)(a)(viii) of the 2001 Regulations. Even if one accepts what Captain Kennedy says in his faxed letter, it would mean that any commercial use of this bungalow remains unauthorised as it has not been suggested that such use commenced prior to the 1st October, 1964. Therefore by virtue of this Article 9(1)(a)(viii), Article 6 is not applicable.
With regard to the octagonal tower it is claimed that this structure is not a "visual navigation aid" as provided for in Class 32(c) of the Regulations. Secondly, that in any event it is not a navigation aid "on the ground" which again, is a specific requirement of this subparagraph. For both of these reasons, the tower cannot be considered to be exempted development. Accordingly, in relation to all aspects of the bungalow, of which complaint is made, the same constitute development which are not exempt, and/or amount to a material change of use. Therefore, in the absence of a planning permission these matters are unauthorised.
The Council also alleges that Hangar No. 3, in its post development condition, should not be considered "an airport operational building" within Class 32(a). This is for a number of reasons. The exemption refers to a "construction, or erection of an extension" whereas the current hangar is a replacement for a previous structure. Secondly, even if this is incorrect it is claimed that the conditions and limitations contained in Column 2 of Class 32(a) have not been complied with. In this regard, the respondents failed to give the required four weeks notice and in addition even if each hangar should be considered separately, then in accordance with Mr. McInerney's evidence, the floor area of the current structure is approximately 75% greater than the floor area of the previous structure. Accordingly, for these reasons Class 32(a) is not applicable. There is, however, another reason that brings Article 9(1)(a)(viii) of the Regulations into play. Even if the respondents contention is accepted, which is that the hangars are integrated and even if in their combined condition they form an "airport operational building", nevertheless, Hangar No. 2 is unauthorised as the respondents' application for retention was, under planning reference S00AA/0284 rejected on 29th June, 2000. Accordingly, the provisions of the said Article 9, preclude the respondents from relying on Class 32(a).
And finally, given the nature of the works carried out it is strongly said that s. 4(1)(h) could not apply.
In making these submissions counsel was not specifically referring to South Dublin County Council, save in the example given and was not suggesting any mala fides or impropriety on behalf of planning authorities generally. He was merely demonstrating a mentality and highlighting an approach which he says can in many circumstances lead to unreasonable demands, which by reason of circumstances including the passage of time, cannot be readily or reasonably satisfied.
In addition he felt that the approach of the planning authority in this case was far too legalistic and that in several respects it failed to show or apply common sense to the prevailing situation. He gave as two examples; firstly the applicant's approach to the waste water treatment system whose objection he felt was downright ludicrous as it meant that an owner could not replace a dilapidated and decaying system of sewage disposal, unless he travelled through the entire gamut of making a full application for permission, and secondly, he referred to the Council's submission that the control tower was not a "visual navigational aid" as showing a much too restrictive approach to the Regulations which in his view demanded in technical terms a purposeful construction.
" Secondly, I am satisfied, since the applicants come seeking relief which would effect the ordinary property rights of the defendant and which potentially could cause him loss that in the absence of some express provision to the contrary which does not exist either in section 27 of the 1976 Act or otherwise in the planning code that the general position must be that it is upon the applicants there rests the onus of proving the case which they are making. Applying this principle to the facts of the instant case before me, it seems to me that the onus is on the applicants to establish facts from which the Court can raise a probable inference that the premises were used at and immediately before the 1st October 1964 as a single dwelling and that that use was subsequent to 1st October 1964 changed to a use as a multiple dwelling which still continues".
"I approached this case on the basis that the onus is upon the applicant to establish to the court's satisfaction that one of the matters referred to in s. 27(1) of the 1976 Act has been or is occurring that is to say the onus in on the applicants to show that development of land, being development for which a permission is required under part 4 of the principle Act, has been carried out or is being carried out without such permission or that an unauthorised use is being made of the land.
I do not accept that Dillion v. Irish Cement Limited, is authority for the proposition that where the respondent seeks to establish an immunity on the grounds that a development is an exempted development under s. 4 of the 1963 Act that he must bring himself within the exemption. Dillion v. Irish Cement Limited was a case in which Finlay CJ considered that in the particular circumstances of that case and by reason of the unique exemption claimed there was such an onus on the respondent. However in the present case none of these considerations apply".
Other passages of some length were also referred to.
With regard to the bungalow, it was asserted that despite whatever works were carried out, the overall length of the structure remained the same and in broad terms its configuration had not changed save by minor alterations. If one looked at the elevation facing the Celbridge Road a section of the house formerly used as a sun lounge was roofed. There were minimal changes to the fenestration of some windows. The attic was converted much like any conversion in a typical bungalow. There was, it was claimed, cogent evidence that many rooms within the bungalow were used in connection with the business. One was described as a kitchen/canteen; another was utilised to entertain V.I.Ps. There were several toilets downstairs which were available for employees and those using the airport. The dormer section had an extensive airport viewing function and also a section of it was used to file and store documents. Such use was in no way inconsistent with the area shown "existing office" and hatched orange on TD-02. Given the voluminous documentation necessary for the proper running of an aerodrome, the utilisation of both areas was perfectly plausible. In addition the control tower was vital as offering a means by which aircraft taking off and landing could be assisted from the ground. Exemption in respect of the control tower was also available under Class 39 of the Regulations. In all, therefore, whilst there was some domestic use, it was abundantly clear from the evidence filed on behalf of the respondents that in a major and significant way this bungalow could be correctly described as being at the centre of and as being the hub for this aerodrome.
Mr. Mansfield was at least as forthright in his comments. At para. 20 of his second affidavit he unambiguously alleges that the attitude and actions of the Council are politically driven and/or are driven by some form of malice and personal attack on him. Likewise, however, no supporting evidence has been produced to justify in any way these said remarks.
(i) The aerodrome licence
On 15th October, 2001 the Irish Aviation Authority, under the Irish Aviation Authority (Aerodromes and Visual Grounds Aids) Order 2000, (S.I. 334/2000) issued in favour of Weston Ltd. an aerodrome licence for the twelve month period commencing on 22nd October, 2001. As holder of this licence that company could avail of the Class 32 exemption subject to the proviso that any development of the type specified in para. (a) of Column 1 thereof, should comply with the conditions and limitations set out in Column 2 thereof. On the acquisition by Fallowvale Ltd. of Weston Ltd. the benefit of this licence would clearly in my view have become available to the new owners of the second named respondent.
In the Council's originating letter dated 3rd September, 2002 reference was made to the aerodrome licence in the context of the planning regulations. On the day following the first named respondent indicated that on 9th August, 2002 it had bought Weston Ltd. and that Noel Smyth and Partners, Solicitors had acted on its behalf in that acquisition. The same letter enclosed a copy of the aerodrome Licence. On 9th September, 2002 Mr. Aidan O'Gorman, the Council's law agent, sought written evidence of this acquisition so that he could satisfy himself that Fallowvale Ltd. had in fact become the holder of this licence. On the day following Noel Smyth and Partners confirmed in a letter to Fallowvale Ltd. that its client was the fully paid up owner of the entire issued share capital of Weston Ltd. a copy of which letter was sent to the applicant on the same day. Actual proof of this acquisition however was insisted upon by the Council. On both the 13th and 23rd September, 2002 Weston Ltd. advised that Noel Smyth and Partners would deal directly with Mr. O'Gorman in relation to this matter and would produce actual evidence of the purchase. Following the institution of these proceedings on 1st October, 2002, the solicitors for the respective parties met on 7th October whereat documentary evidence of the takeover was produced to Mr. O'Gorman. On 14th October the latter confirmed on behalf of the applicant that it now accepted the completion of the takeover herein mentioned. Accordingly, the licence applied to the new owners.
(iii) As can be seen the matter at issue was resolved following the meeting of the 7th October, 2002 and that position was verified by the council in its letter of 14th October, 2002. Mr. Mansfield however takes great exception to the fact that in his second affidavit of 21st October, 2002 Mr. McInerney makes no mention of the "concessions" as he describes them, which are contained in Mr. O'Gorman's said letter of 14th October. He says that this omission showed that the deponent was "disingenuous in the very least" and that his approach could be described as "highly unmeritorious".
(iv) I reject the allegation that the affidavits of Mr. McInerney were misleading, incomplete or were designed to, or had the effect of, conveying a false impression to this court. At the outside of the inter partes correspondence, in fact in the original letter, Mr. O'Gorman the Law Agent makes references to Class 32 of the Regulations and to the exemptions which might be available thereunder. In McInerney's first affidavit there are multiple references to this class and its potential relieving consequences. Therefore once proof of ownership was made available, it was abundantly clear to all that the new owners were entitled to whatever benefits legitimately flowed from this class of the Exempted provisions in the Development Regulations.
(v) Finally, whether the County Council acted reasonably in insisting upon what may be called "verifiable evidence" of the takeover, is a question which might have relevance if the proceedings were related solely to the security fence and to the extension and surfacing of the runway. Of course the areas in dispute cover much more than simply these two matters and therefore I don't see any necessity in having to make a finding on this particular point.
In Lambert v. Lewis (Unreported, High Court, Gannon J., 24th November, 1984) the issue before the court required in the judge's opinion "no more than an interpretation of the exemption regulations in S.I. No. 65 of 1977 …."
These regulations can be considered as predecessors to the 2001 Regulations and on the point at issue are indistinguishable from them. In that case, it was submitted to the court that the activities complained of fell within the class of "light industrial use" and that the premises in question had a history of such use prior to 1st October, 1964 or alternatively prior to 15th March, 1977 the date upon which these regulations came into force. Having found that the defendant's premises did not have the benefit of any such use on either of the dates mentioned and having concluded that the use complained of constituted a material change of use, the learned judge, at pp. 10-11 of the judgment continued:
"Because there is no existing permission granted under the Planning Acts to use the subject premises other than as an amenity contiguous or adjacent to the curtilage of a private residence in an area zoned for primarily residential use and because the occupier Mr. Lewis has made applications for permission for retention of use the onus lies on him to establish the facts from which the court could reasonably infer that there has been no such material change of use. This he has failed to do.
From a further consideration of the judgment as to the manner in which the hearing proceeded, it is clear that the defendant assumed the responsibility of bringing the use of his premises within the exempted Regulations. Furthermore, in addition to the passage above quoted the learned trial judge at p. 14 of the judgment reaffirmed his opinion by saying "In my view any change of use from use for such purposes is an unauthorised use unless coming within the provisions for exempted development in either the 1963 Act or the Regulations of Statutory Instrument 65 of 1977. The onus of establishing exemption falls on the Respondents".
"I am not satisfied that this case comes within Class 34 as an exemption. I am satisfied that in construing the provisions of the Exemption regulations the appropriate approach for a Court is to look upon them as being Regulations which put certain users or proposed development of land into a special and in a sense privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop land, namely, subject to the opposition or views or interests of adjoining owners or persons concerned with the amenity and general development of the countryside. To that extent I am satisfied that these Regulations should by a court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do".
Whilst it might be suggested that this passage deals more with the method of interpretation rather than with on whom the onus rests, nevertheless I feel, that read as a whole and also by reason of the particular reference to the developer putting himself within the Regulations, the judgment is endorsing the principle stated in Lambert v. Lewis. In addition the court also explains at least in part, the justification for placing this obligation on a respondent when the Regulations are being invoked.
"I approached this case on the basis that the onus is upon the applicant to establish to the courts satisfaction that one of the matters referred to in s. 27(1) of the 1976 Act has been or is occurring, that is to say that the onus is on the applicants to show that development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out or is being carried out without such permission or that an unauthorised use is being made of the land.
I do not accept that Dillon v. Irish Cement Ltd. is authority for the proposition that where the respondent seeks to establish an immunity on the grounds that a development is an exempted development under s. 4 of the 1963 Act that he must bring himself within the exemption. Dillon v. Irish Cement was a case in which Finlay C.J. considered that in the particular circumstances of that case and by reason of the unique exemption claimed there was such an onus on the respondent. However in the present case none of these considerations apply."
The same judge also gave judgment in the earlier case Lennon v. Kingdom Plant Hire Ltd. (Unreported, High Court, Morris P., 13th December, 1991) where one of the issues was whether or not the works in question could be correctly categorised as land reclamation and thus exempt under the then exempting regulations. It would appear that the case proceeded on the basis that the onus of establishing the applicability of the exemption rested upon the respondents and accordingly on that ground can be clearly distinguished from Westport UDC. v. Golden. As a result of this concession there was of course no contrary submissions or debate on this point. It can, I think therefore, be accepted that the more concluded view of Morris P. is that as he outlined in the Westport UDC v. Golden decision.
"Secondly, it is said to me that an order made today will give to very considerable difficulties for the Corporation in complying with its statutory obligations under, for example, the Waste Management legislation. In my view the Corporation has nobody but itself to blame if such difficulties are created. I cannot conceive of a situation where the court can, in order to enable Galway Corporation to comply with its statutory obligations under one piece of legislation, permitted to breach obligations imposed upon it by another piece of legislation. In particular the court cannot permit the fulfilment of a statutory obligation, for example, under the Waste Management Act by the commission of offences under the planning legislation". When one substitutes the aviation code in this case for the Waste Management Acts in Curley, the passage herein recited is directly on point."
See also Keane v. An Bord Pleanála and Others  1 ILRM 241 and Cablelink v. An Bord Pleanála  1 IR 596.
In my view therefore it is clear that there is a legal separation between both codes. If circumstances demand then either one must be complied with. Or indeed, as quite frequently occurs, both must be. There is no question of an entity having a choice or exercising a preference for one over the other. If an individual or undertaking conducts a business or activity which is regulated by statutory provisions, then from the outside that position is known to all. Excusing circumstances unless specifically allowed, are not a justification for believing that compliance with one code is a sufficient compliance with both codes. Therefore I have no hesitation in concluding that where by reason of its own actions the respondents have brought themselves within the planning legislation, they must comply with such provisions thereof as are applicable to their individual activity.
"2. It is noted that the hangar which penetrates the Transitional Surface for Runway 07 will be removed within a few weeks, together with the trees and bushes penetrating the 07 Approach Surface. It is also noted that the E.S.B. poles which penetrate the 07 Approach may be removed by the E.S.B."
It is therefore clear that the hangar must have been in existence as of September, 1999, and equally clear that its erection must have been completed prior to the application for its retention which was made in April, 2000. In addition this fact is also evident from a comparison of the aerial photograph taken in 1997 with that taken in year 2000. From an examination of both, it seems to be undeniably clear that the structure shown to exist in 1997 is quite different from the structure as shown in 2000. Furthermore, a similar result follows from an examination of the ordinance survey maps submitted by Fallowvale Ltd. with its letter to Mr. O'Gorman dated 10th September, 2002. All of this evidence shows quite clearly that the hangar coloured green was not the hangar which existed in 1997. Therefore it is not credible for the respondents to make the case that this hangar, coloured green, was built in 1980/1981 or 1987. I must therefore reject the factual basis of this submission.
In my view, what Mr. McInerney observed in September 2002 was in fact what he described namely the demolition of an old hangar and the construction of a replacement extended hangar. It is exceedingly difficult to believe that a man of his experience would be so confused about the ongoing works, which he observed at first hand, so that he was completely mistaken and totally misunderstood what was happening. It is impossible for me to accept the circumstances by which the respondents attempt to explain away his evidence. These suggestions are in part set out at para. 56 above. Furthermore, I do not believe that the evidence advanced by those witnesses who swore affidavits on behalf of the respondents, is sufficient or adequate to displace my acceptance of Mr. McInerney's opinion. I therefore do not accept the respondents' contentions in this regard.
In addition support for this conclusion is available from other resources. In the drawings submitted with the retention application, hangars numbers 3 and 4, in the form in which they then existed, are clearly shown as having a "L shaped dimension" to them. This fact is confirmed by both aerial photographs. It is also, in my opinion, verified by the Ordinance Survey maps submitted by the respondents to the Council in September 2002. These facts, together with the Council's evidence satisfies me that an old hangar was replaced by a new hangar in an area which incorporated part of the old hangar but which was extended in size to a footprint much larger than that which previously existed. Accordingly, I believe that such works constitute a development which unless otherwise exempted must require a valid planning permission.
On this view of the evidence I cannot hold that s. 4(1)(h) of the Act of 2000 has any application to the hangar in question. In addition, however, reliance was also placed on Class 32 (a) of the Regulations. This class grants exemption for the "construction or erection of an extension" to an airport operational building. The structure, "airport operational building", is defined in Regulation 5 as
"… a building other than a hotel, required in connection with the movement or maintenance of aircraft, or with the embarking, disembarking, loading, discharge or transport of passengers, livestock or goods at an airport."
It is therefore clear in principle that a hangar can come within the definition of an "airport operational building". However subparagraph (a) in my view must be interpreted as applying to "an extension" of a building which already exists. I cannot see how the wording in question could cover the demolition of a structure and its replacement by another structure which in this case was much larger than the pre-existing one. Consequently, I do not believe that Class 32 (a) is available for this reason.
A slightly separate issue arose regarding the respondents' wishes to re-roof the building in which the fire station is housed. There is no dispute but that on some occasion there was a roof on this structure which eventually became entirely defective and fell into a state of disrepair. The Council's objection was that until such time aa series of drawings had been produced, it was not in a position to consent to this building being re-roofed. I have considerable sympathy for the respondents when they say that it is ridiculous for a land owner not to be able to re-roof a structure in circumstances where the old roof, the existence of which is not in doubt, has simply deteriorated. On the other hand, the Council's hesitation stems at least in part from some conversation in which it is claimed that Mr. Mansfield indicated that the respondents wished at some point in time, to change the roof type of the adjoining structures. It seems to me that if the respondents wish to replace an old roof with a similar type new roof then prima facie that must come within s. 4(1)(h) of the Act of 2000. Whilst I do understand the concept of the "street scape" as referred to, nevertheless, I believe that a frank exchange of information, falling short of submitting full and detailed plans, may be sufficient to resolve this matter. Therefore I do not propose to make any finding on this particular point.
Finally, from an examination of the photographs and on the basis of the works carried out, in respect of which I accept the evidence of Mr. McInerney, I am satisfied that the provisions of s. 4(1)(h) of the Act of 2000 do not apply. In my opinion such works were not restricted only to the interior of the structure but rather also affected materially the external appearance of it so as to render that appearance inconsistent with the character of the structure.
In conclusion, I do not believe that in respect of the bungalow or the control tower there is any exemption available under s. 4 of the Act or under either Class 32 or Class 39 of the Regulations.
Secondly, notwithstanding these proceedings and despite the conclusions reached in this judgment, I would like to draw both parties attention to the 1998 South Dublin County Development Plan which clearly demonstrates a recognition by the County Council of the importance of this aerodrome, not only within the immediate confines of its location but indeed much further afield. Moreover the Plan, as one would expect, also expressly recognises the importance of its safe and continued operation. I therefore hope that between the parties to this litigation the objectives of the planning code and the aviation code can be harmoniously achieved.
Approved: McKechnie J.